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[2016] ZAGPPHC 37
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Absa Bank Ltd v Veludo (89853/15) [2016] ZAGPPHC 37 (29 January 2016)
HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 89853/15
29/1/16
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
IN
THE MATTER BETWEEN
ABSA
BANK
LIMITED Plaintiff
and
GINO
LUIS
VELUDO Defendant
JUDGMENT
DAVIS
AJ
HEARD
ON: 25 JANUARY 216
JUDGMENT
HANDED DOWN: 29 JANUARY 2016
[1]
This is an opposed application for summary judgment.
[2]
The basic facts pertaining to the Plaintiff's cause of action are
largely common cause or haven't been placed in dispute. They
are the
following:
2.1. The Plaintiff is a banking
institution and the Defendant is a client of the Plaintiff with a
certain account of which the suffix
is 00543 (in order to protect the
privacy of the parties involved, the remainder of the number is not
disclosed);
2.2. Another client of the Plaintiff,
whose identity has been disclosed in the Plaintiff's particulars of
claim, also has an account
with the Plaintiff, but the suffix of
which account number is 05543;
2.3. On 24 June 2015 and due to an
administrative error of an employee of the Plaintiff an amount
destined to be credited to the
account with suffix 05543, was
credited to the Defendant's aforementioned account;
2.4. By way of a number of cash
withdrawals, notably one of R210 000,00 on 29 June 2015, the
Defendant has withdrawn the amount
erroneously credited to his
account.
[3]
The Plaintiff now claims repayment of the amount in question, being
R534 236,30.
[4]
The Defendant's version is curious one. He alleges in paragraph 11.1
of his affidavit resisting summary judgment the following:
"I humbly submit that it is
patently clear that I was the victim of fraud and that it is very
coincidental [on seeing the amount
of funds in my bank account] that
an official in the bank of the Plaintiff may have committed such
fraudulent transactions".
[5]
The alleged fraud was explained by counsel for the Defendant as being
that of an alleged purchaser of gemstones who had misrepresented
to
the Defendant that the purchase price of the gemstones had been paid
(when in fact it had not), causing the Defendant to part
with the
gemstones.
[6]
The gemstone transaction is set out in very cursory fashion by the
Defendant in his affidavit. The Defendant says that he had
won R500
000 "in a competition" at Sun City (a well-known casino and
entertainment destination). A person who had apparently
heard of this
was eager to do business with the Defendant and was introduced to him
by a friend of the Defendant.
[7]
This 'person', one Akhbar Mohammed Hussein (who the Defendant deduced
was from Indian, Pakistani or Afghani descent) apparently
asked the
Defendant if the latter could 'get hold of any precious metals and/or
gemstones' as Mr Hussein 'had a large overseas
market for these type
of goods'.
[8]
The Defendant approached a friend of his, one Mr Dada who apparently
often buys gemstones 'over the internet' who provided the
Defendant
with an unspecified number of Tanzanite stones of unknown carats but
allegedly to the value of
R375 645.60.
The Defendant showed the stones to Mr Hussein at an asking price of
R590 000.00. It was then that Mr Hussein allegedly
offered to buy the
stones at an amount which coincidentally approximates the amount
erroneously credited to the Defendant's bank
account, being an
alleged price of R534 000,00. (The Defendant states that he would
make a profit of R158 354.40 being the difference
between this price
and that asked by Mr Dada).
[9]
Mr Hussein allegedly promised to deposit the agreed purchase price
into the Defendant's bank account and on 24 June 2015 the
Defendant
received an sms message from the Plaintiff that the amount of
R534 236.30 had been credited to the Defendant's bank
account. The
sending of an sms-message is the customary fashion in which the
Plaintiff informs the Defendant of movements on his
account. The
Defendant states that he, however, find it 'highly suspicious' that
his bank statements refers to this deposit as
a "direct credit".
[10]
In the meantime and, on the strength of the sms-message, the
Defendant released the Tanzanite stones to Mr Hussein (who apparently
promised to return to the Defendant for a "possible second
shipment"). What the Defendant further did in respect of the
amount credited to his account, he describes as follows:
"Further on the strength of
the communication, I made various small withdrawals, and in turn on
29 June 2015, I withdrew the
amount of R210 000,00
...
and
paid in cash the amount of R200 000,00 to Mr Dada, whom the
Tanzanite belonged
to".
[11]
Save as set out above, nothing else is stated by the Defendant
regarding the Tanzanite transaction or Mr Hussein. No confirmatory
affidavit of Mr Dada is annexed nor is any allegation made regarding
any further payment to him or any attempt at contacting Mr
Hussein.
[12]
The Defendant states that it was with shock that he received a
telephone call from a bank official informing him of the erroneous
(or fraudulent) credit to his account. He was dismayed at the fact
that the Plaintiff had allowed him to "transact freely"
on
the account before informing him "of any irregularities".
He was requested to attend to the nearest branch of the
bank and to
furnish the Plaintiff with a statement concerning what he knew about
the deposit into his account. He chose not to
do so but immediately
went to his attorney, who is also his attorney of record in this
matter.
[13]
On the basis that it contained an admission of the erroneous credit,
a letter from the Defendant's attorney has been annexed
to the
Particulars of Claim. The significant portion of the letter reads as
follows:
"Mnr Veludo deel ons mee dat
daar k/aarblyklik verkeerdelik 'n bedrag van R534 00,00 in sy
bankrekening inebtaal is, en het
later vasgestel dat dit geld is wat
aan die een of ander Unie behoort.
Mr Veludo was nie bewus daarvan
nie, en het
soos
hy geregtig was
om
te doen, die gelde
gretrek.
Tot sy onsteltenis is hy meegedeel
dat hierdie gelde nie horn toegekom het nie.
Die agtergrond hiervan is dat hy
sekere Tanzanite stene verkoop het aan 'n person vir R 550 000,00 en
hy het ondemeem
om
die geld aan mnr Ve/udo te betaal, wie aan
horn die bankrekeningnommer verskaf het.
Dit blyk verder te wees dat hierdie
person wat die gelde moet oorbetaal, dit nie gedoen het nie, en nou
ook met die stene verdwyn
het ...
"
[14]
In his affidavit resisting summary judgment, the Defendant relies on
the aforementioned letter as setting out "what had
transpired".
[15]
It is immediately apparent that there are a number of anomalies
and/or discrepancies in the Defendant's version:
15.1 There is a difference in the
purchase price which Mr Hussein would purportedly have paid between
what is stated in the Defendant's
affidavit (R530 000,00) and what
was stated on his instruction by his attorney in the above quoted
letter (R550 000,00).
15.2 The difference is significant if
the deposit allegedly corresponding to the purchase price led the
Defendant to believe that
he was entitled to withdraw it.
15.3 The difference between the
alleged price of R530 000,00 and the credit of R534 236,30 is also
never explained.
15.4 There is an absence of any
allegation regarding any further contract with either Mr Dada or Mr
Hussein.
15.5 The absence of such contact or
attempts thereof becomes more significant in view of the apparent
admission in the attorney's
letter that Mr Hussein had indeed not
made the deposit.
15.6 There is an absence of any
explanation for the fact that only R200 000,00 had allegedly been
paid to Mr Dada while the amount
due to him would supposedly have
been R375 645.60.
15.7 It is a curious fact that the
Defendant did not attend to his banker when told that an incorrect
amount had been credited to
his account, but reverted to his attorney
in the fashion that he did.
[16]
In the letter of demand attached to the summons, hearsay evidence is
included to the effect that the Defendant had told a bank
official
that the R210 000-00 which he had withdrawn from his bank account had
been used by him to purchase a motor vehicle and
that he had been
urged by the official to consider surrending the vehicle for re-sale
to assist him in repaying the funds. Although
this is hearsay
evidence, it constitutes allegations attributed to him which he does
not deal with.
[17]
Apart from the absolutely astounding coincidence of the amount
erroneously credited to the Defendant's account very nearly
approximating the alleged sale price of the Tanzanite to Mr Hussein,
I find the Defendant's version "vague and sketchy"
(to use
the oft quoted words used in this regard in the well-known case of
Breitenbach v Fiat SA (PTY) Ltd
1976 (2) SA 226
T at 228 D - F
and the various annotations thereof).
[18]
More importantly however I find the Defendant's allegations that he
was defrauded by Mr Hussein (if indeed a sale contract
of Tanzanite
existed in the terms alleged by the Defendant), read with the
allegations contained in the Defendant's attorneys letter
written on
his instructions, to amount to a concession that he was not entitled
to the amount credited to his account. Put otherwise,
the Defendant's
affidavit does not disclose a defence to the Plaintiff's claim for
repayment of the erroneous credit.
[19]
As a last-ditch attempt, counsel for the Defendant argued that the
Plaintiff's cause of action, being one for enrichment due
to a
payment
sine causa,
had not sufficiently been pleaded. She
argued that it had not expressly been alleged that the Plaintiff had
been impoverished. On
the facts however, it is clear that the
Plaintiff would be liable for the amount of the erroneous credit to
the true beneficiary
thereof and has been "impoverished" by
such liability. Apart from the allegations of unjustified enrichment,
pleaded
in paragraph 7 of the Plaintiff's particulars of claim, the
Plaintiff however also pleaded that the Defendant had not been
entitled
to the funds erroneously credited and had therefore
unlawfully withdrawn and "appropriated" it. This of course
would
flow from the common-law nature of the banker-client
relationship between the Plaintiff and the Defendant. I am of the
view that
the Plaintiff's case had sufficiently been pleaded. I am
also not of the view that a punitive costs order should be granted
against
the Defendant.
[20]
I therefore make the following order:
Summary
judgment is granted against the Defendant for payment of the
following:
1. The sum of R534 236.30;
2. Interest on the aforesaid amount
from 24 June 2015 to date of payment at the rate of 9% per annum;
3. Costs of suit.
_______________________
N
DAVIS
ACTING
JUDGE OF THE HIGH COURT
ATTORNEYS
FOR THE PLAINTIFF
LOWNDES
DLAMINI
C/O
RIAAN BOSCH ATTORNEYS
Suite
5, Monpark Building
76
Skilpad Avenue
Monument
Park, PRETORIA
TEL:
012 346 2325
REF:
Mr R Bosch/RL0121
ATTORNEYS
FOR THE DEFENDANT
DE
MEYER & SERFONTEIN ATTORNEYS
39
Soutpansbergweg
c/o
Soutpansberg Union Streets
Riviera,
PRETORIA
Ref:
O A De Meyer/GVN?DV